Opinion
04-22-00643-CR
01-17-2024
Steve HERRERA, Appellant v. The STATE of Texas, Appellee
From the 379th Judicial District Court, Bexar County, Texas Trial Court No. 2019CR11845 Honorable Ron Rangel, Judge Presiding
ORDER
Irene Rios, Justice
Appellant's brief was originally due March 6, 2023, but was not filed. This court notified appellant's counsel, Judith K. Wemmert, of the deficiency on April 21, 2023. Because Ms. Wemmert did not file the brief or otherwise respond to our notification, on May 11, 2023, we abated this appeal and remanded this cause to the trial court for an abandonment hearing. During that hearing, the trial court found that appellant desired to prosecute this appeal, Ms. Wemmert had not abandoned the appeal, and appellant wished for Ms. Wemmert to continue as his appellate counsel.
On August 23, 2023, we reinstated this appeal to the docket and ordered Ms. Wemmert to file appellant's brief by September 22, 2023. Ms. Wemmert did not file the brief or otherwise respond to our order. On October 24, 2023, we abated this appeal and remanded this cause to the trial court for a second abandonment hearing.
On December 6, 2023, the trial court held the second abandonment hearing, at which Ms. Wemmert appeared. The district clerk and court reporter subsequently filed supplemental clerk's and reporter's records from that hearing in this court. Those records show that during the December 6, 2023 abandonment hearing, Ms. Wemmert represented to the trial court that she was "almost done with the appellate brief" and "expect[ed] to have the brief filed by December 22, 2023."
In light of these representations, the trial court declined to "to enter a contempt finding at this time" or to remove Ms. Wemmert as appellant's appointed counsel. However, the trial court appointed attorney Dean Diachin "as co-counsel to work with Ms. Wemmert on this appeal."
On December 7, 2022, Mr. Diachin filed a Notice of Appearance as Co-Counsel for Appellant in this court. As of the date of this order, neither Ms. Wemmert nor Mr. Diachin have filed a brief or a motion for extension of time to file a brief.
We LIFT our October 24, 2023 abatement and REINSTATE this case to our active docket. We ORDER Ms. Wemmert and/or Mr. Diachin to file a brief on appellant's behalf by January 29, 2024 No extensions will be granted absent extenuating circumstances. If the brief is not filed by that date, we will abate this appeal and remand this cause to the trial court for a third abandonment hearing.
Additionally, and notwithstanding any action of the trial court, we advise Ms. Wemmert that if the brief is not filed as required by this order, we may order her to appear before this court in person and show cause why she should not be held in civil and/or criminal contempt or otherwise sanctioned for failing to comply with this order and this court's August 23, 2023 order. See Tex. R. App. P. 38.8(b)(4).
The clerk of this court shall cause a copy of this order to be served on Ms. Wemmert by certified mail, return receipt requested, or give other personal notice of this order with proof of delivery. The clerk of the court is further directed to serve a copy of this order on the Honorable Ron Rangel, Judge of the 379th Judicial District Court.